By Bianca Lopez, Solicitor

24 August 2023

The Australian Association of National Advertisers (AANA) recently announced updated rules to strengthen the regulatory framework for advertising to children. The new AANA Children’s Advertising Code, set to come into effect on 1 December 2023, includes tightened restrictions on advertising to children and complements the AANA’s Food and Beverage Advertising Code with respect to banning certain advertising (such as the promotion of occasional food and beverages – for further information on the AANA Food and Beverage Advertising Code, please see our earlier article).  The outgoing version of the Code has been in place since 2014 and some emerging issues (including “kidfluencers”) have been addressed in this new update.

As background, the main focus of the Code is to provide a clear framework for Australian advertisers and marketers in their advertising directed at children. The AANA states of the new Code that “The Code is no longer limited to advertising for children’s products and will provide critical protections around any advertising directed at children”. This means that not only will advertisers and marketers need to comply with the existing safeguards in advertising to children such as the occasional food and beverage restrictions noted above, under the Code advertisers and marketers now have a clear framework to adhere to for all advertising directed at children across all media and at all times of the day.

New (rules for) Kids On The Block

Under the Code, there are stringent rules that advertisers and marketers must adhere to in their advertising directed to children. Some of these rules already apply to advertising under existing codes, for example ensuring advertising does not include price minimisation (e.g. using words such as “only” or “just” in reference to the price of goods or services, and the Australian Consumer Law (ACL), such as ensuring advertising is not misleading or deceptive.

However, the Code also includes rules that go beyond the ACL and existing codes, with the AANA focusing on the recognition of the distinct vulnerability of children and the need to have a comprehensive framework for the advertising industry. This has seen the introduction of specific rules into the Code relating to unsuitable or hazardous products and child-focused influencers and content creators, as follows:

     i. Unsuitable or Hazardous Products & Services

A key focus of the Code is the AANA’s strong effort to protect children from the promotion and advertising of products or services that are unsuitable or hazardous. For example, under the Code, advertisers and marketers are strictly banned from directing advertising to children that promotes any hazardous product, with a specific call out to vapes, kava and highly caffeinated drinks.

Further, advertisers and marketers must not use (in any advertising) anything that may promote the encouragement of unsafe practices. The AANA have released guidance that states this extends to any advertising that may encourage bullying, promote an unhealthy ideal body image or which incorporates sexual appeal or imagery when dealing with children.

     ii. ‘Kidfluencers’

The AANA has also developed rules to address the rise of ‘kidfluencers’ in advertising – that is, social media influencers whose content is primarily directed at children. After undertaking research that identified that using influencers, popular personalities, or celebrities (live or animated) in advertising lowers a child’s ability to recognise content as marketing, the AANA has placed stringent requirements that any advertising by kidfluencers must be immediately and clearly recognisable as advertising.

Under the Code, kidfluencer content that is marketing or promoting products and services to children must clearly be distinguishable to children as advertising. That is, the advertising should include disclosures that are of significant colour and size within or directly next to the marketing communication.

Won’t somebody please think of the children!

The Code has been adopted by the AANA to provide stringent rules in relation to marketing and advertising directed at children. This means it is imperative for advertisers and marketers to understand when their advertising may be considered to be targeting children (and in turn when the Code will apply).

In the Children’s Advertising Practice Note, the AANA have provided clear guidance on the three criteria the Ad Standards Community Panel will consider in determining whether advertising targets children. We note the criteria is similar to the criteria in relation to ‘Targeting Children’ under the AANA Food and Beverage Code.

Following a complaint, the Ad Standards Community Panel will consider:

1. the nature and intended purpose of the product or service being advertised;
2. the presentation of the advertising; and
3. the expected average audience at the time and place the advertisement appears.

It is important to note that the Ad Standards Community Panel considers advertisement to be directed to children where data exists to indicate that 25% or more of the predicted audience will be children. Alternatively, where accurate audience data is not available, the Ad Standards Community Panel may have regard to the other factors listed above, such as the content and nature of the advertisement and/or the time or the location where the advertisement is being shown.

What does this mean for you?

The AANA has stated the importance of ensuring a high sense of social responsibility and protection in all advertising directed to children. As you may be aware, the Australian advertising industry is a voluntary self-regulatory system that is overseen by the AANA. The intention of the self-regulation is to maintain high advertising standards across the industry as a whole, and it is clear the AANA is ensuring this same high standard applies to advertising directed to children and is making strong efforts to fill any gaps in the industry with the clear, stringent rules under this new Code.

However, the effective operation of this self-regulatory system relies on all advertisers and marketers continuing to uphold the standards and requirements under the Code. Without advertisers and marketers actively participating, the industry faces the risk of inefficient and far more onerous government intervention to enter the space.

Accordingly, it is important you assess whether your advertising and marketing will comply with the Code when it comes into effect on 1 December 2023. This includes ensuring you are clear on whether the advertising is intended for children or whether it may be deemed directed at children with consideration given to the nature and intended purpose of your advertising and the presentation or placement of the advertisement. If it is the case that the advertising is directed to children or may be seen to be targeting children, you must then ensure you are clear on what you can and cannot do in the advertising under the Code.

Contact us

If you would like further information or advice on compliance with the new changes under the AANA Children’s Advertising Code or assistance with a review of your proposed marketing activity, please contact one of our experts below.